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TMI Blog2009 (2) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... cants and Smt. Sudha Koka, the learned SDR, appeared for the Revenue. 3. We heard both sides. 4. The learned Advocate stated that the Final Order passed by this Bench has not considered all the submissions made in the appeal/synopsis during the hearing held on 23-8-2007. It has been stated that in the worst scenario, the duty liability would be only to the order of Rs. 1,01,364/- for M/s. Sapthagiri Cements and Rs. 1,20,270/- for M/s. Srinivasa Cements. They have also stated that if the third party purchases are not allowed for deduction, the net liability will be only Rs. 12,80,461/- for M/s. Sapthagiri Cements and Rs. 13,41,124/- for M/s. Srinivasa Cements, as per the work sheets submitted by them. The said pleadings made in the synop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing of rectification of mistake. In particular, they have pointed out the decision of the Hon ble Supreme Court, in the case of Deva Metal Powders Pvt. Ltd. v. Commissioner, Trade Tax, UP - 2008 (221) E.L.T. 16 (S.C.) = 2008 (9) S.T.R. 113 (S.C.) wherein it has been emphasized by the Hon ble Supreme Court that a mistake which is patent and which is obvious and whose discovery is not dependent on argument or elaboration could be rectified and such a power of rectification is not confined to clerical or arithmetical mistake but the same should be self evident and patent thereof. In the case of Honda Siel Power Products Ltd. v. Commissioner of Income Tax, Delhi - 2008 (221) E.L.T. 11 (S.C.) = 2008 (9) S.T.R. 117 (S.C.), it has been laid down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the impugned OIO traverses beyond the scope of the Show Cause Notice and this pleading of the appellant has not been considered by the Tribunal. Our attention was invited to para 11 and 12 of the synopsis given regarding the figures arrived at. 5. On the other hand, the learned SDR stated that the Final Order has considered all the factors into consideration and has upheld the Order of the original Authority. It was pointed out that the capacity of both the Units was mentioned as 50 MT per day in the Show Cause Notice dated 13-6-2003. Correspondingly, the annual capacity of the units was recorded as 15,000 per MT for the normal period of 300 days in a year @ 50 MT per day. It is Important to note in this regard that both M/s. Sapthagir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so certified by the buyers in the statements recorded. Taking all these evidences into account, the Tribunal has confirmed the production figures arrived at in the impugned OIO. It was also pleaded that the Commissioner has already given a finding with regard to the clandestine production which has been endorsed by the Tribunal in para 7.4 of the Final Order. The Commissioner has held there is record in the log book, there is record of the In and Out Register , there is record of loading and these records show the actual removals. Thus, their difference that the sales alleged as unaccounted were obtained for trading and not manufactured in their premises is without any basis. They have not produced any such claim during the investigation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed all the incriminating documents based on which the Commissioner has confirmed the demands. The said documents indeed contain precise information on the alleged clandestine production and clearances. On careful consideration of the evidences, the Tribunal has come to the conclusion that the demand confirmed is sustainable. If the Tribunal has not appreciated the facts correctly, it cannot be said that there is an error apparent on the face of the record. 6.1 On a very careful consideration, we find that the Tribunal has given elaborate reasoning for upholding the OIO. Every point has been considered. It is not necessary that every information given by the appellant has to be incorporated in the finding to show that they have been consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch remains to be investigated cannot be corrected by way of rectifications. This is very relevant. Even if the Tribunal had committed an error in applying the law to the set of facts, which the appellants have stated then, in terms of the above Supreme Court decision, it cannot be corrected by way of rectification. In our view, this RoM has no merit. If they are challenging the findings of the Tribunal, which has upheld the order of the Commissioner, then the proper course in this case would be for the applicants to approach a higher court. They could have gone in appeal to the High Court against the said Final Order. In our view, there is no error apparent on the face of the record. Hence, the RoM is rejected. (Pronounced in open Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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